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Environmental Rights and the Public Interest: Hatton v United Kingdom/Dennis v Ministry of Defence

David Hart QC

July 2003

Environmental Rights and the Public Interest: Hatton v United Kingdom/Dennis v Ministry of Defence

Seminar Paper delivered by David Hart QC to the British Institute of International And Comparative Law on Thursday 24 July 2003

1. I suspect many public and environmental lawyers would not have predicted that in the first half of 2003 air noise cases directly raising public interest defences would be decided so differently. The first in time was Dennis v. Ministry of Defence, in which Buckley J decided that the MoD (acting on behalf of RAF Wittering) was liable in nuisance to the owners of a neighbouring stately home ? even though (on the judge?s findings) there was nothing the air base could do to avoid causing the noise it did, which was an inevitable consequence of using the particular aircraft (Harriers) at the base. A claim under the Human Rights Act also succeded, relying on Article 8 and Article 1 of the 1st Protocol.

2. The second case was of course Hatton v. United Kingdomin which the Grand Chamber in Strasbourg decided that the applicants? Article 8 rights had not been infringed as a result of the implementation of a new night noise scheme at Heathrow in 1993 which the applicants said had led to an increase in the noise endured by various claimants. An Article 13 claim succeeded.

3. Some of the differences between the cases will be apparent from the above. But there are 2 key further differences which it is important to bear in mind as one reflects on the different outcomes. The first difference is that RAF Wittering was not built or extended under any statutory authority, and therefore the issue was whether the common law should recognise public interest as a substantive defence to the well-recognised tort of nuisance. Mrs Hatton and her colleagues had, however, to face the statutory immunity imposed by s.76(1) of the Civil Aviation Act 1982 in respect of civil claims, and the lack of recourse to the statutory nuisance regime arising under statute . These immunities in turn had previously passed muster, according to the Strasbourg court in Powell & Rayner v. United Kingdom and Glass v. United Kingdom.

4. The second difference arises on the facts. Mr Dennis had suffered a very significant diminution in the value of his property attributable to the air noise, estimated by the judge at £4,000,000. The evidence in Hatton was that there was no obvious diminution in value between those affected by air noise and those who were not, hence why no Article 1, Protocol 1 claim was advanced.

5. Returning now to the similarities between the cases, Hatton was ultimately concerned with obtaining a finding that the 1993 scheme was unlawful and that therefore the Government should be obliged to re-open the question of night-flying and whether it remained lawful. This was unsuccessful. Similarly, in Dennis, there was a claim for a declaration that flying on the pattern adopted in the past was unlawful. This claim was not successful, although the reasoning advanced by the judge included noting that the MoD were planning to continue the present flying regime until 2012, and that any move now would be at a very considerable cost.

6. Now then to a little more detail on the public interest defence which failed in Dennis. The judge concluded that on ordinary principles the Harriers caused a nuisance to Mr and Mrs Dennis, ?unless otherwise justified. It seems to me that the nettle must be grasped. Either these Harriers constitute a nuisance or public interest, as represented by the MoD maintaining a state of the art strike force and training pilots, provides immunity? . He considered that public interest, which was relevant at the remedy stage (namely, whether to grant a declaration) did not provide a defence at the liability stage. He ruled therefore that ??the nuisance may continue, but the public, one way or another, pays for its own benefit.?

7. Mrs Hatton did not on the other hand end up with any compensation, even though in a similar way she was suffering noise for the benefit of the public as a whole. The Grand Chamber ultimately accepted that the Claimants were sincere in their complaints and further that the implementation of the1993 Scheme had considerably affected the applicants, in respect of their private life of their enjoyment of the amenities of their respective homes . On what basis was it held that those complaints did not give rise to a breach of the State?s Article 8 obligations, given established case law such as Lopez Ostra and Guerra?

8. The Grand Chamber?s reasoning went something like this. (1) Article 8 is applicable. (2) However, in deciding whether there has been an interference under Article 8(1) or whether any such interference can be justified under Article 8(2), a fair balance must be struck. Hence the Court did not decide whether there was an interference, though it did conclude that the applicants were seriously affected. (3) In a case which depends upon State decisions affecting environmental issues, a wide margin of appreciation must be afforded to any substantive decision: the Court?s function was a ?supervisory? one ?of a subsidiary nature? . (4) The persons significantly affected by this measure (2% to 3% according to a 1992 study, and a relatively small number of people before the Court) were limited. (5) The public benefit to the United Kingdom was great. Ergo, (6), said the Court, a fair balance was struck.

9. One does not have to be a dyed-in-the wool human rights lawyer in order for eyebrows to be raised at the reasoning. Caricaturing a little, it is redolent of old-style utilitarianism, with the decision as to the fate of a minority?s interests determined by the interests of the majority . An awareness of this may explain the Grand Chamber?s equivocation as to whether a person such as Mrs Hatton who is ?seriously affected? by a measure has suffered a sufficient interference under Article 8(1) to amount to a breach. I am sure it underpins the manful attempts to downplay the significance of Lopez Ostra and Guerra.

10. The Court seeks to down play these important cases by pointing out, correctly, in paragraph 120 that in each of Lopez Ostra and Guerra there was an underlying failure by the national authorities to comply with some aspect of the domestic regime. The precise relevance of this illegality to the question of ?interference or no? remains unexplained, but given that it occupies two central paragraphs (120 and 121) in the Court?s reasoning, one assumes that it is of some importance.

11. There are, however, very significant difficulties in this re-interpretation of the leading previous cases. (1) The previous decisions of the Strasbourg Court did not identify this domestic illegality as a necessary element in an environmental human rights complaint.(2) It seems illogical to attach significant weight to domestic illegality given that Strasbourg caselaw attaches much more importance to their own ?autonomous? conceptions of what does or not amount to a breach of a Convention right. (3) Cases since such as have confirmed the principles of Lopex Ostra and Guerra without discerning any such additional principle.(4) The argument may often be circular, if, as often in countries incorporating the Convention, Convention interference will amount to domestic illegality.

12. Returning, now, to our comparison with Dennis, one obvious middle view which could have been taken by the Strasbourg Court would have been to say that, without an acceptable scheme for compensating those directly and seriously affecting by air noise, the Scheme did not achieve a fair balance. To so conclude would be entirely in accordance with cases such as S v. France In my view, it is no answer to say that the applicants had not suffered loss in value of their homes, and that it was reasonable for them to sell up and move if they wanted to reduce noise levels . The Strasbourg court consistently recognises the place for the award of non-pecuniary damages in appropriate cases, of which this would seem to be a good example. Equally well recognised is the principle that, even if the activity can As the minority judges point out , the compensation of a small minority of applicants can have little if no macroeconomic effect given their number.

13. The Grand Chamber has also delivered itself of an important, if in my view, regressive view on the more general significance of environmental rights in the Convention context. The rival contentions are well expressed in the lively dissent from the French (Costa), German (Ress), Turkish (Turmen), Zupancic and Steiner judges. Citing other international instruments such as the United Nations Declaration on the Human Environment and the European Union?s Charter of Fundamental Rights, they contend that the development of the law apparent from Guerra and the other cases is entirely consistent with international trends, and should remain firmly recognised by Strasbourg. The Court should not be shy at recognizing that there is a right to a healthy environment, and hence anyone directly affected by interference with that right should be afforded a claim under Article 8, or Article 1 Protocol 1 if applicable on the facts.